v6 n1

Section Review

Property Law Section comments

The Massachusetts Bar Association Property Law Section has historically been an active one, drawing on the dedication and talent of a broad range of practitioners who represent banks, developers, municipalities, housing advocates and individuals on a myriad of real property issues. As the council's agenda takes shape this year, it is clear that we will spend much time evaluating and commenting on proposed legislation concerning zoning, affordable housing and title issues.

At the end of last year, the council voted to endorse portions of the Massachusetts Land Use Reform Act. The act, which is the work of a consortium of land use professionals, including several members of the council, is the first major updating of the commonwealth's planning, zoning and subdivision control statutes in almost 30 years. Most will agree that the current statutory framework is fragmented and confusing, and some zoning provisions, like those related to grandfathering and ANR lot plans are unprecedented in other states. Others, like those dealing with nonconforming uses and structures, are poorly drafted and ambiguous. Finally, unlike nearly every other state, there is no statutory requirement in Massachusetts that local zoning laws or subdivision regulations be consistent with regional or municipal master plans.

The consensus of the council last year was that the Land Use Reform Act is a significant step in the right direction. Seventeen provisions of General Laws Chapter 40A and 41 would be revised under the proposed legislation. The most controversial involve amendments to the exemptions section of the zoning act, which currently provides religious, educational, day care, agricultural and even solar energy uses exemptions from most zoning restrictions. The act proposes to standardize language, enhance local authority and limit the definition of educational uses and other exemptions. The act also attempts to address the grandfathering provisions of 40A, section 6 by revising the format, language, style and substance of the section. Some protections are eliminated, others modified, but the general result is to trim grandfathering protections to more basic levels, and to increase local discretion.

The act also creates standards for site plan review, establishes implementation procedures for development impact fees and requires mediation of land use appeals. It eliminates the statutory exemption for ANR land divisions, authorizes municipalities to require a percentage of affordable housing for approved subdivisions, and mandates the adoption and implementation of local master plans. By most accounts, the legislation is a comprehensive, well-reasoned step toward overhauling what is generally considered to be an antiquated and often mystifying statutory scheme.

Not everyone agrees. The Massachusetts Home Builder's Association has taken a strong stand against amendments that could be construed to limit or encumber rights enjoyed by developers and property owners under current law. Similarly, many in the educational and disability communities have voiced concern that limitations on exemptions will enhance "NIMBYism," and enable local communities to bar access to schools, day care centers and facilities serving the handicapped and the elderly. The council agrees that these concerns are legitimate, and need to be addressed as the Land Use Reform Act winds its way through the legislative process.

The council is equally invested in efforts to reform General Laws Chapter 40B, the so-called "anti-snob zoning act." Affordable housing has become a national crisis, but the problem is particularly acute in Massachusetts. In the last decade, while ostensibly trying to enhance low- and moderate-income housing opportunities, Massachusetts has consistently ranked at the bottom of the list of states producing new housing stock. Chapter 40B is the only real driver for affordable housing production, and much debate and litigation has been generated regarding its implementation. In recent years, as land becomes increasingly scarce, comprehensive permit applications have taken on a greater adversarial flavor in most communities.

Clamor to alter or amend the statute is now deafening, and during the last legislative session more than 70 proposed bills floated through the House and Senate. In February 2003, Gov. Romney established a Chapter 40B Task Force composed of legislators, municipal and regional officials, developers and environmentalists. The task force issued a report in May, and reaffirmed the need to increase the supply of housing, with particular emphasis on increasing opportunities for households earning less than 80 percent of the area median income. Seventeen modifications were proposed to mitigate the legitimate impacts of Chapter 40B, and numerous recommendations were made to improve the effectiveness of the statute. The council anticipates that the recommendations of the task force will be enacted into law at some point, but debate regarding housing policy will continue. We intend to maintain an active role in this process, through meaningful dialogue with developers, planners, legislators and housing advocates throughout the course of the coming legislative year.

Finally, the council will weigh in on current controversies surrounding the homestead statute. Homesteads have been part of Massachusetts land law since the early 1800s, and the statute has been amended in various way over the years, most notably and recently by increasing the equity exemption to $300,000. Although the existence of the statute is well known to homeowners, they and attorneys who wisely advise them to declare the state of a homestead often misunderstand the legal effect of the statute. With the popularity of mortgage refinancing surging, there has surfaced recently a deep divide among conveyancers as to whether new homestead declarations need to be refiled in order to maintain the exemption. Experienced conveyancers differ sharply on the subject, due principally to the statute's lack of clarity. The council has studied the matter for some time and this year will draft or support proposed legislation for consideration by the House of Delegates.

It is certainly an exciting time to be a property lawyer. The council is dedicated to serving the association by evaluating and commenting on legislative developments, and providing education and resources for our members. If you have thoughts or comments regarding the work of the council, please contact me at [e-mail mfee].